New Law Review Articles

I'm just copying Larry Solum's blog here, but there are some great new law review articles.

First, Michael Stokes Paulsen (U. Minnesota) has a piece called The Irrepressible Myth of Marbury, in which he argues that the reasoning used by Justice Marshall in Marbury v. Madison logically and inexorably leads not to judicial supremacy, as is so often thought, but to the right of both the executive and legislative branches to interpret the Constitution for themselves, even to the point of refusing to enforce a judicial decision that departs from the Constitution.

Short version: Marshall supported judicial review by saying that if a judge is presented with a law that appears to him to violate the Constitution, his oath to the Constitution must come first. According to Paulsen, the exact same logic applies to the other branches: If a President is presented with a judicial decision that appears to him to violate the Constitution, his oath to the Constitution must come first.

Anyway, Paulsen's piece is very provocative and well-worth reading, as is everything that he has ever written.

Next comes two articles on the Ninth Amendment by Loyola's Kurt Lash: The Lost History Of The Ninth Amendment (I): The Lost Original Meaning
and
The Lost History of the Ninth Amendment (II): The Lost Jurisprudence.

I haven't read these two articles, but based on having read Lash's work on the Establishment Clause, I have no doubt that they're worth reading.